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02/03/88 Gte Mto, Inc., Successor v. the Illinois Commerce

February 3, 1988

ILLINOIS, PETITIONER

v.

THE ILLINOIS COMMERCE COMMISSION ET AL., RESPONDENTS (AT&T COMMUNICATIONS OF ILLINOIS, INC., INTERVENOR). -- ILLINOIS INDEPENDENT TELEPHONE ASSOCIATION, PETITIONER,

v.

THE ILLINOIS COMMERCE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

GTE MTO, INC., successor to General Telephone Company of

COMMISSION et al., Respondents

(AT&T Communications of

Illinois, Inc.,

Intervenor)

Nos. 4-87-0430, 4-87-0437, 4-87-0438 cons.

521 N.E.2d 547, 166 Ill. App. 3d 916, 118 Ill. Dec. 265 1988.IL.120

Date Filed: February 3, 1988; Modified on Denial of Rehearing April 6, 1988.

Petition for review of order of Illinois Commerce Commission.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On December 17, 1986, AT&T Communications of Illinois, Inc. , filed application with the Illinois Commerce Commission under the Universal Telephone Service Protection Law of 1985 (Protection Law) (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 13-100 et seq.). The application (86-0541) sought revisions to AT&T's competitive services tariff, specifically designating three new services (SDN, MEGACOM, MEGACOM 800) as competitive. On December 18, 1986, AT&T filed a second application (86-0542) seeking to amend its certificate of interexchange service authority to enable AT&T to provide intramarket service area (intra-MSA) interexchange telecommunications service, specifically the three proposed services (SDN, MEGACOM, MEGACOM 800). The two cases were consolidated for hearing before the ICC.

Petitions to intervene as "potentially affected providers or customers" were filed by: Illinois Consolidated Telephone Company ; Illinois Bell Telephone Company (Illinois Bell); General Telephone Company of Illinois ; and Illinois Independent Telephone Association . MCI Telecommunications Corporation filed a brief with the ICC in support of AT&T's application. Following hearing on the matter, the ICC entered orders, dated April 15, 1987, approving AT&T's proposed revisions. IITA appeals both orders. GTE appeals the order allowing AT&T to provide the new services (86 -- 0541).

Petitioners allege four issues for our consideration upon review. In light of our ruling, however, it is only necessary for us to reach the first issue presented, that being: whether the ICC's order, granting AT&T the authority to provide intra-MSA interexchange telecommunications services (86 -- 0542), is in violation of section 13 -- 403 of the Protection Law. During hearing before the ICC there was little dispute that the proposed services should be classified as competitive. We affirm the ICC order designating the proposed services as competitive as it applies to inter-MSA services (86 -- 0541).

We find the order of the ICC in 86 -- 0542 in violation of section 13 -- 403 and consequently reverse.

The State of Illinois is divided into 19 market service areas for telecommunications. A market service area is a geographical area consisting of one or more exchanges, defined by the ICC for administration of tariffs, services, and other regulatory obligations. (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 13-208.) Intra-MSA service is service between two points located in the same MSA. Interexchange service is service between points located in two or more exchanges. (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 13-205.) AT&T is properly certified to provide interexchange service in Illinois.

There are two major groups of telecommunications carriers in Illinois. The first group consists of local exchange carriers which provide facilities-based service within local exchanges and between points in different local exchanges that are within the boundaries of a specific MSA (intra-MSA service).

The second group of telecommunications carriers is composed of interexchange carriers. These carriers primarily provide facilities-based service between points in different MSA's (inter-MSA service) or between points in different States.

AT&T is an interexchange carrier in Illinois. AT&T was issued a certificate of public convenience and necessity on December 18, 1984, authorizing AT&T to provide inter-MSA interexchange services within Illinois. AT&T provides private line service, message toll service , wide-area telecommunications service , and 800 service on an inter-MSA and interstate basis. AT&T is not a local exchange carrier.

As of January 1, 1987, interexchange carriers were allowed to provide intra-MSA interexchange service (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 13-403). In order to provide such service, however, an interexchange carrier must obtain authority from the ICC. Under this new Protection Law, the ICC may issue multiple certificates to provide intra-MSA interexchange service if the applicant "possesses sufficient technical, financial ...


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